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Boertmann v Cincinnati Ins Co; (MSC-PUB, 11/21/2012; RB #3294)


Michigan Supreme Court; Docket No. #142936; Published
Justices Young, Markman, M. B. Kelly, and Zahra; 4-3 per curiam
Justice Hathaway dissenting, joined by Justices Cavanagh and M. Kelly
Official Michigan Reporter Citation:  ____ Mich ____ (2012); Link to Ordercourthouse graphic

Statutory Indexing:       
Entitlement  to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
PIP Benefits for Bystander Psychological Injuries [3105(1)]
General /  Miscellaneous

Topical Indexing:        
Not applicable

In this Order, entered after leave to appeal was granted and briefing and oral argument had occurred, the Michigan Supreme Court reversed the Court of Appeals and remanded the case to the circuit court for entry of summary disposition in favor of defendant.  The issue in this case was whether plaintiff was entitled to PIP benefits for post-traumatic stress disorder suffered as a result of witnessing the motor vehicle accident that caused the death of her son.  The Court ruled that plaintiff was not entitled to PIP benefits because there was an insufficient causal connection between her condition and the operation of a motor vehicle.  In this regard, the Court held that:

MCL 500.3105(1) provides, “Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” An injury arises out of the use of a motor vehicle as a motor vehicle when “the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or ‘but for.’” Thornton v Allstate Ins Co, 425 Mich 643, 659 (1986). Here, as tragic as the motor vehicle accident that caused the death of plaintiff’s son was, the causal connection between plaintiff’s injury, i.e., post-traumatic stress disorder, and the “use of a motor vehicle as a motor vehicle” is not “more than incidental, fortuitous, or ‘but for.’” Any injury suffered by plaintiff was too attenuated to be compensable. Plaintiff herself was in no way involved in the motor vehicle accident; she was not on the motorcycle with her son, nor was she in the vehicle that struck her son; and she was not struck by the motorcycle or by the vehicle that struck her son. Instead, just as with the plaintiff in Keller v Citizens Ins Co of America, 199 Mich App 714 (1993), plaintiff was simply a bystander who very unfortunately witnessed an accident that resulted in her son’s death. Accordingly, just as with the plaintiff in Keller, plaintiff is not entitled to no-fault benefits.”

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